This article is written by Sharanya Chowdhury, studying at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article has been edited by Ruchika Mohapatra (Associate, LawSikho).

This article has been published by Abanti Bose.

Introduction

Although most people agree that reproductive rights are essential to one’s right to life, the method of providing the same has always been debated. From abortion rights to menstrual leave, modern-day society has realised that reproductive rights are lacking not just for women but for other gender minorities as well. However, this often does not reflect the legislation of various countries. Feminism, in modern terms, has been defined as “equity between all genders and sexualities.” Although the world as a whole is slowly embracing the idea of a non-binary world, it is necessary to apply this knowledge in our legislation as well. The idea of this article is to look at reproductive rights from a broader perspective, including not only women but also gender minorities and people of non-heterosexual orientation. 

Section 312 of the Indian Penal Code

Although several articles have been written about the termination of pregnancy through the IPC 1860 in the past, sections of the IPC were intended to regulate forced miscarriage and not to provide guidelines on how abortions should be conducted. During this time, there were a lot of illegal abortions due to the lack of legislation about the same, which in turn affected the health of the women seeking abortions. This section is still in place and was recently seen in the case of Smt. Sumita Mukherjee vs. The State of Madhya Pradesh on August 7, 2014, where the defendant had filed an appeal before the High Court. The High Court concluded that the trial court had not contemplated the aspect of the case where miscarriage was caused in good faith to protect the health of the prosecutrix. Thus, no case under Section 312 of the IPC could be made out against the applicant.

Although the section here is much needed, no legislation was made to back it up. This shows that there wasn’t enough information with regards to the ground reality of the situation. Forced miscarriage is not only conducted through medical processes but also through starvation, torture, and other gruesome means, which often go unnoticed because women often do not have the means or the freedom to inform the authorities of the ill-treatment that they bear, often from their own families or in-laws.

Acts and Bills on medical termination of pregnancy

The Maternity (MTP) Act 1971 can be considered the first legislation with regard to abortion in India. It brought in not only guidelines on who may undergo the process of abortion, but also laid down specifications on where they may have their pregnancy legally terminated. The Act specified a deadline of twelve weeks within which the woman would have to have the written consent of one medical practitioner. At least two practitioners are necessary if the period of pregnancy exceeds twelve weeks. The “sine qua non” of this legislation was the aspect of “good faith”, i.e., they only allowed abortions within the purview of IPC 1860, which meant that even if a woman intended to terminate her own pregnancy, a threat to her physical health was one of the major factors determining whether the termination would be granted.

Other cases in which abortion may be granted were:

• Where any pregnancy is alleged by the pregnant woman to have been caused by rape,
• If any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children,

The legislation provided that the pregnancy of a minor or a lunatic (as legally defined) may not be terminated without the consent of their guardian and mentioned that the procedure of abortion may only be conducted in a hospital established or maintained by the government or a place for the time being approved for this purpose. The legislation demanded the protection of the privacy of the woman. However, the guidelines for the same were later deemed ambiguous. 

Although this Act was a ray of light in a never-ending tunnel, it could not manage to fulfil its goal, which was to make illegal abortions a thing of the past. It failed to consider the scope of executive failure by using mere “guidelines” and not providing bodily autonomy to women. In cases where the reason for the pregnancy did not fall into the given subsets, such as a married woman not having kids, the law could not provide the much-needed relief. This showed the mindset of Indian society towards women, where they would be granted pregnancy termination only if they had “enough children”.

The MTP Act, 2003 further amended the previous Act and added a certain level of clarity to it. Although the termination of pregnancy could still be conducted with the consultation and permission of an authorised medical practitioner, the idea of this act was to make the process of termination safer by preventing under-qualified practitioners from being consulted on the subject. This was done by specifying the training and experience required for such doctors, specifically approving places where the procedure may be conducted, making provisions for the inspection of the approved place, and mentioning the process of cancellation or review of an approved certificate. This was a welcome move for the safety of women. The Act, however, included no mention of non-cis-gendered females. The overtly gendered terminology of Indian legislation restricts the Act to cis-gendered females. Trans guys who have chosen out of surgery or hormone therapy and may be physically capable of having children, hence abortion was not an option for them. Individuals of the intersex community were also left out of these legislations. This not only made abortion legally impossible for these communities but also made reproductive health inaccessible.

The MTP Act, 2021 like the successive Acts, is constricted in the usage of the word “women”, which does not extend the benefits of the bill to transgender people or individuals belonging to other gender minorities. It is important to bear in mind that, in India, the transgender community faces immense persecution, rape, and sexual assault. If a person from the transgender or intersex community conceives under these circumstances, they would not have the same recourse as a cis female. Bodily autonomy has been the main issue in this Act, cases such as Suchita Srivastava v. Chandigarh Administration (2009) and ABC v. Union of India have discussed the same extensively. The Act adds an upper gestation limit of 20 to 24 weeks for specific groups of women, which is established in the MTP Rules. The modifications include rape survivors, incest victims, and other vulnerable women (such as differently-abled women and children), among others. Up until the 20th week of pregnancy, the opinion of only one medical practitioner is required. Although this is not ‘ideal’, it can be seen as an improvement from the previous Acts. In addition to this, an important step towards inclusion is the addition of unmarried women who now, may undergo abortions on grounds of “failure of contraception”. 

The Transgender Persons (Protection of Rights) Act, 2019 

The Transgender Persons (Protection of Rights) Act, 2019 included provisions for the recognition of transgender persons irrespective of whether they had undergone gender confirmation surgery. This step to improve the social status of the community does not fulfil its goal due to the unexplainable control of such recognition by the District Magistrate. To add to that, we are in desperate need of laws that allow transgender individuals to freeze their sperm or eggs to be later used to have biological children if the person so desires.

Although gender confirmation surgery (also known as gender reassignment surgery in India) is legal, there is a lack of laws that lay down provisions and guidelines parallel to the case of abortive laws in India. In addition to the serious persecution of the transgender and intersex communities in India, we face a strange conundrum where many transgender individuals are denied gender confirmation surgeries and cannot bring it up with authorities due to the stigma attached to the same, and at the same time, many intersex children are made to go through “reproductive correction” without their consent to “make them” a part of the binary.

The Surrogacy (Regulation) Bill, 2019

It is important to note that India does not allow commercial surrogacy, but it allows altruistic surrogacy. This is to make sure that human trafficking for surrogacy purposes can be discouraged. The law lays down guidelines for the “intending couple” for whom surrogacy may be practised. Yet again, we see an exclusion of the genderqueer community by the usage of binary terms in this legislation, which means that a non-binary individual will neither come under the category of the “intended couple” nor be able to birth a surrogate child even if they are biologically capable of doing so. Akin to adoptive laws, the Bill also discriminates against homosexual couples as they will not fit the category of the “intending couple” within this bill, despite falling within the binary of the gender spectrum.

Conclusion

This is the part where I advocate for diversity. If you’ve ever read similar articles and wondered, “Why are all of these things such a big problem?” Why don’t these communities stand up against this discrimination? It’s time to keep in mind that these communities are constantly under-represented in the government. This is not only because of their fewer numbers; they are in fact un proportionally represented. In India, this is a bigger problem. This is not only true for the non-binary community but also true for women and the transgender community (that identify within the binary). Laws related to the bodily autonomy of other gender identities are often made by cis-heterosexual men who are often not educated enough and don’t have the right exposure to see the perspective of other identities. In addition to this, the stigma against non-male identities makes it difficult for them to be represented in politics.

No representation equals a lack of knowledgeable people with the exposure to understand and advocate for the rights of minorities within the law-making framework. No knowledge leads to laws that are either discriminatory, impractical, or full of loopholes. Our horizons need to widen and our laws need to cater to all citizens instead.

References 

1. https://reproductiverights.org/maps/worlds-abortion-laws/
2. https://www.actionaidusa.org/blog/why-we-support-women-around-the-world-to-claim-their-reproductive-rights/
3. https://www.icrw.org/wp-content/uploads/2016/10/Realizing-Reproductive-Rights-and-Choice-Abortion-and-Contraception-India.pdf

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.